It’s time to end death penalty secrecy

On March 9 a bill mandating secrecy about the death penalty process was fortunately stopped in the Idaho state senate. It would have prohibited state officials from revealing information about aspects of the death penalty process, such as where they obtain lethal injection drugs. It failed to make it out of the state’s senate judiciary committee.

The failure of the bill was both surprising and significant.

It was surprising because Republicans are dominant in that chamber, controlling 28 of 35 seats and have a 7 to 2 majority on the committee.

It is significant because this is one of the few times that death penalty opponents have been successful in defeating death penalty secrecy legislation. What happened in Idaho should prompt other states to reconsider the secrecy that surrounds their execution processes.

Secrecy frustrates the public’s right to know what the government does when it puts people to death. It prevents inmates from getting access to information they need to protect their constitutional rights. And secrecy invites irresponsible behavior in the execution chamber.

Today 19 of 27 death penalty states have secrecy statutes on the books.

Typical is Florida’s law that protects the identity of anyone “administering, compounding, dispensing, distributing, maintaining, manufacturing, ordering, preparing, prescribing, providing, purchasing or supplying drugs, chemicals, supplies or equipment” needed to carry out executions.

Georgia’s law goes even further, hiding information about executions both from the public and the courts and calling such information, in language more appropriate for an intelligence agency than an execution, “a confidential state secret.”

The Idaho legislation would have shielded the identity of the on-site physician, and the medical and escort teams present during executions. It also “provided confidentiality to and prevented the disclosure of any person or company who ‘compounds, synthesizes, tests, sells, supplies, manufactures, stores, transports, procures, dispenses, or prescribes the chemicals or substances for use in an execution or that provides the medical supplies or medical equipment for the execution process.’”

Following Georgia, it would also have blocked that information from being made available in any death penalty litigation or court case.

The bill was a response to a 2020 decision by the Idaho State Supreme Court ordering release of information about the drugs used in Idaho’s last two executions which were carried out in 2011 and 2012.

That decision led to the disclosure that state employees twice had gone out of state to make clandestine cash purchases of execution drugs, concealed the intended use of those drugs, manipulated state records to cover up their activities, and stonewalled legitimate public records requests for execution-related information.

Proponents of the Idaho secrecy legislation accused abolitionists of trying to carry on a public shaming campaign directed at companies that provide the drugs used in lethal injection because they could not end capital punishment any other way. They said that the law was needed to undo the damage done by the Supreme Court decision and that without it Idaho might never again be able to carry out an execution by lethal injection.

This kind of characterization of abolitionist tactics was first given voice by Supreme Court Justice Samuel Alito in 2015 during oral argument in Glossip v Gross, a case which considered the constitutionality of using the sedative midazolam as the first drug in executions.

As Alito put it at the time, “Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

The notion that the problems states have had in obtaining lethal injection can be laid at the door of abolitionists carrying out “a guerilla war” and that secrecy is the justified response to their tactics has been debunked by scholars like law professor Eric Berger, who explains that “In reality, though, a variety of mostly uncoordinated actors motivated by a range of distinct norms has contributed to states’ lethal injection woes. These actors, such as doctors, pharmaceutical companies, and institutional investors, follow their own professional incentives, usually unrelated to the morality of capital punishment.”

Secrecy is less a response to abolitionists’ allegedly illegitimate tactics than to lethal injection’s serious and intractable problems.

One witness told the Idaho legislative committee that secrecy statutes make botched executions more likely “by shrouding all of the preparation in darkness.”

And as Ronald Bush, a retired U.S. District Court judge who has presided over cases where a condemned Idaho inmate was fighting the state’s execution policy, told the committee, secrecy puts at risk both the Eighth Amendment rights of a condemned person and the First Amendment rights of the general public. He rightly noted that, in lethal injection executions, “it’s the details that matter.”

The famous historian James Bryce wrote in 1888 that “Selfishness, injustice, cruelty … shun the light; to expose them is to defeat them.” The death penalty’s injustice and cruelty are no exception to this rule. It is time to end the regime of secrecy that surrounds them and bring them to light so, as Bryce said, they can be “destroyed.”

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College.